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SPEECH OF HOi S. 0. GPJSWOLD, 

OF CUYAHOGA COUNTY, 

On the Resolutions Relafhe to the Suspension of the Wril of 
Habeas Corpus and arrest of Disloyal Persons, 

DELIVERED IN THE OHIO HOUSE OF REPRESENTATIVES, 
JAlSrUARY 29, 1363. 



Mr. Speaker: — At this late day in the 
discuasion of these resolutions, it will not be 
expected that any new argument can be pre- 



sented ; but befoie any vote is taken, I desire 
to oiler a few suggestions upon tiie matters 
under consideration. The debate has taken a 
very wide range. Almost every topic which 
at present agitates the country has been com- 
mented upon duiing the past week. But, in- 
siead of following in t.hp track of those who 
have preceded me, I would recall the atten- 
tion ot the House to the original subject of 
this long discussion — to the resolutions of the 
gentleman from Franklin, JMr. Dresel. They 
do not purport to come from the petition or 
ui^on the complaint of any of our constitu- 
ents. None of " the eleven citizens " therein 
mentioned, ask for any action on the part of 
this General Assembly. The chief" martyr " 
the member from Fairfield, (Dr. Olds ) e.x- 
pressly declares that he does not ask for any 
interposition on the part of this body. On 
the other hand, the preaml)le recites that the 
Caovernor of Ohio, in a recent speech, not de- 
livered as Goveruor — not in his official ca- 
]iacity —- but m an address as a private citi- 
zen, made certain statements. Is it proper or 
becoming this House to take action upon 
what the Governor may happen to say in his 
unoHicial character? Indeed, sir, no practi- 
cal action — no beneficial result is proposed 
by these resolutions. Durinif the five lou"- 
iiours that the member from "Fairfield occu° 
pied the floor for the delivery of his tedious 
tirade and re-hash of old stump speeches, he 
did not suggest a single idea tending towards 
any practical result. To what end are we to 
make the investigations required, as to who 
-svas arrested — where confined — how dealt 
Jt^ith — and when discharged? When these 
nets are ascertained, what further action do 
^se resolutions propose ? None, sir,— none 
^fiitever. True, it is declared that the honor 



•( 



of our Governor requires this investigation, 
and that these enquiries are necessary for his 
vindication. I doubt not our worthy Execu- 
tive would say of these new friends, "" beware . 
of Greeks bearing gifts." (Not onlv, sir, isnol- 
beneficial action or result proi)osed, but on 
the very face of the matter, as well as from 
tlie course of this debate, the animus of the 
resolutions is apparent. Their object was lo 
provoke political discussion, to mcVease party 
strife, to destroy our confidence in the chief 
l^xecutive, and perchance weaken the power 
of the Government in this time of deadly 
peril. Even if I lielieved that the President 
had no right to suspend the writ of Habeas 
Corpus, and that the arrests of these alleged 
disloyal persons, was in fact, unlawful, I could 
have no sympathy with the spirit of these 
resolutions; I could in no manner lend my- 
self to the accomplishment of any sucii pur- 
pose or intent. If the mere policv of these 
arbitrary arrests," as they are called, was 
legitimately before us, I should not hesitate 
to condemn it. In seizing ranting editors 
and broken down politicians, I think the 
Government has made a great blunder. The 
manner, too, in which it has been done, has 
not commended itself to the people. The 
exercise of this high power has necessarily 
been under the charge of the War Depart- 
ment ; and in this matter, as well as in his 
control of the war news, the chief of that 
bureau has shown too great a lack of confi- 
( dence m the intelligence and good sense of 
the people. If he had made public the 
causes ot arrest and detention. 1 have no 
doubt his action would have been g^ nerally 
approved. But we are not called upon to ex- 
press our opinion as to the good sense of the 
Secretary of War. The i)urport of these 
resolutions and the tenor of this debate reach 
far beyond that disbeliever in Jomini and the 
science of war — far beyond him ; and would 



^ 



Vv 



have this General Assembly, so far as its 
action would go, arraign and impeach the 
President of the United States. Differing, as 
I do, with many of my brethren of the Union 
organization — believing their radical policy 
to be ruinous — yet to the purpose and intent 
of tliese resolutions, I can give no counten- 
ance. Whatever may be the errors of the 
Government, it needs the support of every 
loyal man. Admit, for the sake of argument, 
that the President has exceeded his lawful 
pow^'rs, yet his error has been upon the right 
side. It has grown out of his earnest devo- 
tion to the country — out of his desire to 
speedily and more surely put down the re- 
bellion. It is an error which all men who de- 
sire the success of our arms can readily over- 
look and pardon. 

But have the gentlemen who have argued 
171 favor of these resolutions made a case 
against the President ? is it by any means 
clear that the power exercised by the Presi- 
dent is not given him by the constitution ? 
I do not propose to renew the argument. It 
has been ably and fully presented by my 
colleague, (Mr. Dickman,) and by the gentle- 
men from Logan and Montgomery, (Messrs. 
West and Odlin.) But, sir, some remarks 
have been made by the eloquent gentleman 
from Hamilton, (Mr. Sayler,) who has just 
taken his seat, to which I must give a passing 
notice. To the learning and eloquence of 
that gentleman I always listen with pleasure. 
I give him full credit for his avowal of loyal- 
ty and devotion to the Union. With much 
be has said I have full accord and sympathy; 
but, notwithstanding his learning and elo- 
quence, it seems to me his conclusion was 
"lame and impotent." He argues that the 
President has no power to suspend the writ 
of Habeas Corpus upon three grounds, viz: 
From the history of the writ — from judicial 
decisions — and from the context of the con- 
stitution. In his argument from the history 
of the writ, he has given us a long disquisi- 
tion on the struggles of the English nation to 
establish free institutions. It is history for 
all to read with pleasure and profit. Its les- 
sons are apt for the present hour. The gen- 
tleman takes just pride to himself that he be- 
longs to that Anglo-Saxon race, which, 
through long ages maintained its indepen- 
dence against the Plantagenets, the Tudors, 
the Stuarts, and finally, through innumerable 
conflicts on flood and field, established the 
civil liberties of England. Does he boast of 
belonging to such a race ? I can well say in 
tltat respect, " I am a citizen ot no mean city." 
My lineage, from the earliest days, have taken 
part in this great contest for free Institutions. 
On the side of liberty their lives have been 
nobly offered, their blood has been freely 
shed. The gentleman more than once sought 
to impress upon our minds the aphorism that 
"from age to age history repeats itself" Did 
it not occurto the vivid imagination of thegen- 
tleman that both in magnitude and the con- 
sequences involved, the present great contest 



surpasses anything thaf ever happened on 
British soil ? Is not the great contest here 
reproduced in the Unhed Stales, and as much 
enlarged as a continent exceeds an isle? Is 
the gentleman fully alive to the importance 
of this great American ccmtest ? In' emere 
temporaiy evil of an alleged usurpation of 
power by the President, does he lose sight of 
the infernal attempt of this great conspiracy 
to overthrow alike both President and con- 
stitution ? iThe gentleman is fond of sayino- 
that he is "equally opposed to abolitionism 
on the one hand, and secession on the other." 
While I agree with him as to "abolitionism" 
as against "secession," I fear he is altogether 
too tame. WMiat is to be feared of abolition- 1 
ism ? It is but a theory ; it can n(^ver make ' 
the black man white. But " secession" is in ; 
arms ; and its success will establish the most ' 
cruel and barbarous aristocracy that ever 
cursed the earth ! Tthank the gentleman for 
his historic readings. I wish their lessons 
could be impressed on every heart. My mind 
would glow with hope, if our whole northern 
people could be infused with the firm, sturdy 
spirit of old Anglo-Saxon freedom. But 
"-hat lessons does the gentleman draw from 
this source of inspiration ? What teachings 
does he impart ? Wot the clarion cry " to 
arms;" not "death rather than dishonor;" 
not that we should rally under our glorious 
fiag, and with united force crush out the re- 
bellion. Alas, no! In vain did I watch for 
such a strain. I only heard the feeble echo 
ot what traitors and aubniieeionisis boldly 
declare. He is terribly exercised lest Abraham 
Lincoln will destroy our constitution. He 
fears that the President has exceeded the just 
bounds of that instrument, and that we should 
immediately throw around it the protection 
of this General Assembly. 

But his logic is as faulty as his moral is 
puerile. His argument is that because the 
King of England has no power to suspend 
the Habeas Corpus, therefore the President 
of the United States is prohibited from exer- 
cising that power. I need not point out the 
distinction between the powers of our chief 
Executive and those of the Sovereign of Eng- 
land, or the falsity of the proposition — that 
whatever is prohibited to one is prohitited to 
the other; or the reason why the power in 
the given case should be withheld from the 
latter, while it might be safely entrusted to 
the former. This has already been ably done 
by the gentleman from Wood, (Mr. Cook.) 
I only allude to it in order to show the weak- 
ness of his syllogism — the non sequitur in 
his logic. 

Again, he devotes a part of his six hour's 
speech to a review of judicial decisions and 
opinions to sustain his proposition. He ad- 
mits that the precise question has never been 
adjudicated. On the other hand, I do not 
deny, that, so far as the dicta of judges and 
the opinions of law-writers are concerned, 
the weight of authority is in favor of that con- 
struction which would give to Congress aoA 



^A3 



not to the President the power of suspending 
till! Habeas Corpus. It is easy, also, to see 
how this notion obtained force. Judging 
from the analogy of the coimuon law, and 
that this power was vested in Parliament 
alone, -ey naturally aimed at this conclusion. 
But theseopiiiioiis were arrived at without 
the crucial test of actual trial. It is only 
when the severe case arises that the whole 
depth is probed. These conclusions^ were 
arrived at in times of comparative peace ; not 
when the very foundations of the government 
itself were shaken, and the minds of all men 
were aroused to tind some " arm of s.ifety." 
There has been an overtiauliug of old opin- 
ions and ideas; and Che viewsof the bestand 
wisest have undergone, the greatest changes. 
Wiien the President was first called upon to 
act in this matter, the Capitol and Maryland 
swarmed with secret trail ors, and tjie rebels 
were counting on easy victory. Whom to 
trust was the great inquiry. Dishonor, in- 
gratitude and treachery unparalleled, were 
suddenly displayed. The attack was sudden 
and the danger immineni. The President, 
honest — anxious to act rightly and for the 
best — sustained by the opinion of the Attor- 
ney General and oilier eminent jurists — de- 
cided that this great prerogative, to be exer- 
cised only in case of rebellion or invasion, 
and only then, when required by the public 
safety, belonged to theExecutive department. 
Acting upon this decision, the secret trai- 
tors of Baltimore and Washington were ar- 
rested before their infernal plans could be 
executed, and Maryland was saved from civil 
strife, and forever lost to the ariHed confeder- 
ates. 

The power has since been exercised to pre- 
vent the mischief of tho>'e who would dis- 
courage enlistments, and who, mistakenly or 
otherwise, were giving aid and comfort to the 
rebellion. Whether this latter exercise was 
wise or unwise is not the question, but does 
this power belong to the President? Con- 
gress has virtually admitted that it does. 
The Judiciary have to pass upon it hereafter. 
But is it for tliis General Assembly to antici- 
pate the Judiciary? Are we to set ourselves 
up as a high court of inipeiichment? Have 
we not been wasting our time in vain and un- 
profitable discu,ssion ? What authority is to 
decide ihat the construction of the constitu- 
tion by the President is not the true one ? 
In their eagerness to find fault and arraign 
the President, the gentlemen on the other 
side have forgotten the old doctrines of the 
Democracy. Much has been said of the 
opinions of Oeneral JncJcaon. it is claimed by 
the gentlemen on the one side, that his con- 
duct and opinions are precedents for the pre- 
sent Executive, and on the other hand, much 
time ha-} been devoted to explain away the 
faias so relied on. 

The histoiy and memory of General Jack- 
son are, so far as this House is concerned, is 
the e->pecial property, of the gentlemim Irom 
Haaxilton. Willi him this is an inexhausti- 



ble topic. Let me give you his views on the 

duty of the President to construe the consti- 
tion for himself I read frcm his veto mes- 
sage of July 10, 1832, page 4: 

" The Congress, the Executive and the 
" Supreme Court, must each for itself be 
" guided by its own opinion of the Constitu- 
" tion. Each public officer who takes an 
" oath to support the Constitution, means 
" that he will support it as he understands 
" it, and not as it is understood by others. 
" It is as much the duty of the House of Repre- 
" sentatlves, of the Senate and of the Presi- 
" dent, to decide upon the Constitutionality 
"of any bill or resolution which may be 
■' presented to them for passage or apjiroval, 
" as it is for the Supreme Judges, when it 
"maybe brought before them for judicial 
" decision. The opinion of the Judges has 
" no more authority over Congress than the 
" opinion of Congress has over the Judges, 
" ■ nd on that point the President is indepeu- 
" dent of both." 

Again, in his famous protest, in reply to 
the claim that the Sena'e might compel the 
President to yield hisopini(m by withholding 
appropriations, etc. " If the President should 
" ever be induced to act, in a matter of official 
" duty, contrary to the honest convictions of 
" his own mind, in compliance with the 
" wishes of the Senate, the constitutional in- 
" dependence of the Executive would be as 
" effectual ly destroyed as if that end had been 
" accomplislied by an amendment of the 
" Constitution, .followed to its consequences, 
" this principle will be found to effectually 
" destroy one co-ordinate department of the 
" Government, to concentrate in the hands of 
" the Senate the whole executive power, and 
" to leave the President as powerless as he 
" would be useless." 

It is admitted by all the gentlemen on the 
other side, that the precise question as to who 
should exercise the power of suspension of 
the Habeas Corpus, under the Constitutioi;, 
has nevt'r been settled by any authoritative 
practice or decision. No man is bold enough, 
or so regardless of truth or decency as to 
charge Abraham Lincolm with corruption. 
How then stands the case, applying to it 
these doctrines of General Jackson ? The 
rel>e!lion existed. Secret traitors swarmed in 
every department of the Government. The 
public safety required that the writ should 
be suspended. It was a question of construc- 
tion. The President, anxious to do his whole 
duty, with the best lights he could have for 
his guidance as a co ordinate power in the 
Government, construed that section of the 
Constituti(m as giving himself the power of 
suspension. If this was his ho ne-'^t conviction 
in a malte,)' of official duty, was he not bound 
to exercise the power? Was he not bound 
to act upon his understanding of the Consti- 
tution ? In the matter of ilie exercise of 
power under a construction of a particular 
clause, is not the Executive Departni'-nt equal 
to Congress or the Judiciary? How can 



*>.-^N 



,4 



gentlemen— how can the Democracy, who 
..follow, as by instinct, — the opinions of An- 
.t,d;"ew Jackson, complain of Abraham Lin- 
coln? The cry of "tyrant" — "usurper"— "a 
violation of the Constitution," is cheap polit- 
ical capital. When General Jackson an- 
nounced these doctrines which I have read, 
liiese very terms were used by the Whigs 
^without stint. The whole vocabulary of 
r. abuse was exhausted by I hem, and poured 
out upon his devoted head. But, Sir, Gene- 
ral Jackson was sustained by the people. 
These views of his, so bitterly denounced, 
have become, with proper limitations, the 
settled theory of our Government in regard 
, to the independence of the Executive. So, I 
'; trust, it will be with Abraham Lincoln. By 
false party cries, by political deceit, the peo- 
ple may, for a lime be divided, and led 
astray ; but they are never to be led into 
submission to Southern despots. When these 
Ipaists have cleared away, and the people 
shall see and know that the President has 
been actuated by a sincere purpose to save 
Ins country — to preserve the Government — 
he will go down ^o the latest day, not only 
as Lincoln "the honest," but Lincoln "the 
liiithful and true." 

The third and last point relied upon by the 
gentleman, and so contideutly urged by 
him, is the argument based upon the context 
of the Conslitutiou. He says that the clause 
.relating to the suspension of the privilege of 
\ .'the writ, is a restriction upon the legislative 
department; and as the restriction is upon 
' Congress, no power but the one restrained 
could lawfully exercise the right in the ex- 
cepted cases. TIk^ argument would be con- 
clusive if the assumption upon which it was 
based, i-ested upon fact. The gentleman saw 
the necessities of his case; and he boldly 
assumes that the whole of the 9th section of 
Article I is a restriction upon the powers of 
Congress. The clause iu question is in the 9th 
section, and the conclusion therefore would 
be inevitable. But unfortunately for his iirgu- 
ment, his major premise is false. It is true, 
tluU the 9th section of Article I is placed un- 
der the chapter entitled "Legislative Depart- 
ment;" and it is further true, that the 9th 
section contains restrictions upon the power 
of Congress. But the statement in its full 
length and breadth is not true. The 6th 
jiangraph of the 9th section, viz : "No money 
" shall be drawn but iu consequence ot ap- 
" propriations made by law ; and a regular 
" statenieni of the receipts and expenditures 
" of all public money shall be published from 
time to time," is clearly a restriction upon the 
"Executive Department of the Government. 
The collection and expenditure of public 
money is an executive, iiot a legislative duty. 
So likewise is the succeeding paragraph, pre- 
venting the acceptance of any "title," etc., 
a restriction, not upon Congress, but upon 
individual citizens. 

The whole of the next section (10) is a 
restriction, not upon Congress, not upon the 



Executive, not upon individuals, but upon 
the States of the Union. Here, then, we 
have in the context, limitations upon Con- 
gress, the Executive, tlie States and individ- 
ual citizens. In the phraseology of the par- 
agraph in regard to the suspension of the 
writ, there is no indication upon whom the 
limitation and resti-ictions are placed. Noth- 
ing is anywhere said by whom the power in 
the excepted cases is to be exercised. The 
conclusion that the Constitution itself declares 
that this peculiar power belongs alone to 
Congress and not to the President, is there- 
fore an assumption, and we ai-e left to ascer- 
tain the true intent and meaning of the par- 
ticular clause, as in all other cases of doubtful 
import. The anrimi^nts resting upon policy, 
convenience, and the adaptation of the in- 
strument itself to the necessities of the nation 
and the actual condition ol affairs, are all 
entitled to their proper weight. So, also, 
the Constitution is to be taken as a whole; 
and if the denial of this power to the Presi- 
dent renders other parts, or powers given, 
nugatory, then this denial is wrong in theory, 
and the power lawfully belongs to him. 

We are theretbre led to a consideration of 
the different grants of power, given in the 
Constitution. "Every one must be struck, at 
the outset, with the difference between the 
grants of legislative and executive power. 
On the one hand, the subjects up<m which 
Congress can legislate are specifically enume- 
rated; and the action of Congress is t-pecially 
limited to these particulars. Beyond these, 
Congress may not go. The language is, "All 
legislative jjowers herein granted shall be 
vested in a Conj;ress." On the other hand, 
no such limitation is placed upon the Execu- 
tive Department. The language is, "The 
executive power shall be ve-sted in a Presi- 
dent of the United States of America." True, 
certain specilied things are prohibited; but 
tiie general executive action has no limita- 
tions. No better or wiser men ever lived 
than the framers of our Constitution. They 
understood the business in which they were 
engaged. All the problems touching the 
perpetuity of free Government, were, by them 
profoundly considered; and none more anx- 
iously than tins question of executive ]iower. 
The gentleman has cited us to the history of 
Home, and to the jealous care and regard 
with which her institutions protected the 
rights of personal liberty, etc. The example 
of that ancient Republic was not lost upon 
our fathers. They knew how precious were 
these personal rights, and how their enjoy- 
ment made Rome the queen of the ancient 
world. But they remembered also the fate 
of Rome, that however glorious her govern- 
ment, it had been a fai! ure. They remembered 
how, in times of great emergency and danger 
— when, the Gaul was at her gates— when 
some civil commotion shook her walls— -that, 
by common consent, the Senate, the Knights 
and the People alike surrendered themselves 
to absolute rule; that to some eminent 



^:^/^^ 



;.5 



citizen power was given over life and dcatli, 
Mud, as one man, the whole power of the 
State was hurled a,i^aiiisl the foe; and so the 
city was saved. Tiiey remembered 'too, that 
through tlie abase of this power, liberty was 
lost and the empire established. They saw that 
a permanent executive was needed, anU tliat, 
by him, in extreme cases, great power musi 
be evercised. Tlie struggles between the 
Commons and the King of England were 
fresh in their minds. The name of King was 
odious; an aristocracy was intolerable; and 
a mixed Government of Kings, Nol)le3 and 
Commons was entirely impracticable. 

Its beuetiis they well understood, but in a 
New World a new Government was needed. 
The wealiness of the old confederation had 
demonstrated tlie necessity of executive pow- 
er. They saw, likewise, that it was impossible 
to peaetrat<; the future, and prescribe^ an ex- 
ajt code for the Executive Department ; and, 
placing around and over the President every 
reasonable gua'd, lie was left free to act. He 
was made commantler-in-chief of the aiuiy 
and navy ; but it was left to Congress " to 
raise and supjwrt armies;" "to provide and 
maintain a luuy." In lilie manner he was 
given the command of the militia of the 
Hiafes when in actual service, but it was left 
to Congress " to provide for calling forth the 
militia, to execute the laws, to suppress in- 
surrections and repel invasions." I am no 
believer in this new doctrine ot a "war pow- 
er" outside of the Constitution; nor do I 
conceive it to be necessary to discover any 
hidden strength in the Presidential oath. 

As I have said, the Executive Department is 
not placed under general hmitations. The Ex- 
ecutive power is- vested in the President; and 
with certain special restrictions, he is left 
free to act, anil is simply required and direc 
ted to "take care tluit the laws be taithlully 
executed" He is required to do everything 
necessary to accomplish that end. Let me 
not be misunderstood. I do not claim that 
liis will is or can be law. But simply this:! 
that in exercising the executive functicms, he 
is free to act, subject only to this limiiali(ni,j 
tliat he may not do the things specially for- 
bidden, or do or perform any act inconsistent 
with the spirit of the Constitution. This, 1 
conceive to be the true rule. Tiiis very sub- 
ject of the militia of the States fully illus- 
trates the argument. J-*ower is given to 
C'oxigress to provide for calling them forth, 
auti in tUe commencement of the Goveru- 
inent, Congress legislated on the subject, and 
made tiie necessary provisions in regard to 
tlie matter. There were three purposes for 
whicli they might be rec(uired to take the 
ti id, "to execute the laws," "to suppress insur- 
rections," to rep(;l invasions. But wdio liad 
tiie power, or the right, to deteruune when 
the exigency had lia;)pcned wbicli woujdau- 
tiioriae their being called forth ? 

Let me call your attention to a few words 
of 'Visdomon thi'^poiiit. Ireadfrom Wheaton, 
S. C. H'-pijrtd, Vol. l'^;, in the case of xMurtiu 



t'«. Molt. "The power to call the militia into 
" actual service is felt to be one of no ordi- 
nary magnitude. But it is not a power 
" whiiii can be executed without a corres- 
" ponding responsibility. It is, in its terms, 
" a limited power, confined to casts ot actual 
" invasion, or of imminent danger of inva- 
" sion. If it be a limited power, the ques- 
tion arises, by whom is the exigency^ to be 
"judged of aiid decided." "We are all of 
" the opinion that the authority to decide 
" whether the exiijency has arisen, belongs 
"exclusively to the P'resideiil." "It is no 
" answer, that such a power may be abused; 
" for there is no power which is not suscep- 
" tible ot abuse. The remedy for this, as 
" well as for all odier oliicial misconduct, if 
" it should occui', is to be foimd in the Con-^ 
" stitution itself" "The danger is (must be) 
" remote, since, in additi(m to the higli qual- 
" ities wi)i(ii the Executive must be presumed 
",to possess of public virtue, and hniest de- 
" votion to tlie publicinteresis, tiie fre(|uency 
" of elections and the watchlulness of the 
I " Representatives, carry with them all the 
I " checks which can be useful to guard against 
j " usurpation or wanton tyranny." So, in 
like mtinner is the President to decide in 
cases of insurrection. It is for him to deter- 
mine whether the unlawful coudiinations are 
too powerful to be pat clown Ijy the cjrd.inary 
civil authority, or whether the insurrection 
can only be sujjpressed by the aid of the 
ndlitia. No one can deny that, in the present 
lebellicni, the exigency happened; or, that 
President Lincoln was jiisiitied in calling 
forth the militia. The rebels were already 
in arms, and when the militia responded to 
the call, a, state of war was brought into ex- 
istence. 

By the constitution the President is the 
Commander in (/lii( f ot the forces ot the 
United States. Shall it be said that he can 
not exercise all the necessary functions of a 
chief command because these things are not 
written out in the constitution, or that any- 
new ]>owers are given him because of this 
command ''. Neither view seems to me to be 
Correct. The performance of the duties of a 
commander in chief is only another exercise 
of the executive f)ower vested in him by the 
constitution. The rule ^ have before laid 
down governs him the same as in times of 
peace. Whatevei' powers necessarily ludong 
to a general in chief in time of war, he must 
possess; otherwise the command is a nullity. 
In a state of war, to a certain extent, civil 
rights and privileges are in abeyance. When 
gentlemen admit that a commander in chief 
may, under any circumstances, proclaim mar- 
tial law, they yield the whole case. But, 
say they, it must be co/itiued to the lines of 
cainp, aud to the immediate presence ot the 
hostile arnues. VVhy must it oe so lindted? 
May the danger U'^t t)e as great in Ohio as in 
Tennessee y A spy or traitor could do a 
thousan.l times more misiiuef on the Scioto 
than he could on the Cuiuberluud. If the 



power belonofs to the President, tlie discretion 
as to its exercise is snrely his. It can only 
apply to the rebels, or those who would giA^e 
them aid and comfort ; and beyond this the 
President has not attempted to go. The pro- 
clamation read by the gentleman expressly 
C(mfiQes its application to this class of per- 
sons. True, the gentleman from Fairfield 
would altogether deny this power to the Pre- 
sident. So, likewise, the logic of the gentle- 
man from Hamibon leads to the same result. 
Let us push the argument to its natural con- 
sequences. They say that the amendments 
to the constitution ; Articles IV, V and VI, 
guarantee to every individuaJ sacred personal 
rights — the security of life, person and pro 
peity — the riglit of a trial by one's peers — 
the right to be confronted by one's accusers — 
and a freedom from arrest, unless by warrant, 
supported by oath or affirmation, upon pro- 
bable cause. And the}' further say, that by 
these arrests the constitution has l)een viola- 
ted. The reading is plain and easily to be 
understood ; lor it is not to be denied that the 
])ersons arrested have been denied these 
guarantees. But, as I have said, iji a condi- 
tion of actual war, are not these rights in 
abeyance — and in such ac mdition of atfairs 
the individual case must yield to the jjeneral 
benefit — and it does not follow that the con- 
stitution lias been violated. What difference 
is there, I ask, between tiiat territory which 
may lie between the armies of the Union and 
the rebel hosts, and any other portion of our 
country? Is it not one and indivisible? Is 
not the constitution alike sacred over all? 
Let me suppose that the space between the 
hostile forces is inhabited by Dr. Olds, and 
his auditors of the famo s Berne meeting. 
It becomes necessiry for the Union armies to 
move, and the line of their march leads 
across the premises of Dr. Olds. The order is 
given, liut on his division line stands that wor- 
thy gentleman, and forbids the movement. 
He declaies that he is entirely loyal and de- 
voted to the government, but that it will he 
trespass to cross his land the herbage will be 
trodden down — "his]'>ioi)erty cannot betaken 
without, due course of law" — if the marcli is 
made, the constitution will be destroyed. An- 
other of this worthy set might have concealed 
in his house arni|L intended for the public 
enemies. He mignt be on the very eve of de- 



seizure saved the lives of thousands of Union 
soldiers? He can see nothing but the con- 
stitution. He reads, as there laid down, " the 
" right-of the people is to be secure in their 
" persons, houses, papers and effects, against 
" unreasonable searches and seizures, shall 
" not be violated ; and no warrants shall 
" issue but upon probable cause, supported 
" by oath or affirmation, and particularly de- 
" scribing the place to be searched, and the 
" persons or things to be seized." No afh- 
davit was made ; no warrant was issued ; it 
was a mere act of "tyrranical power," and 
the plaintiff is entitled to be restored to his 
property, so wrongfully seized. So his judg- 
ment is entered up — ^' Mr. PremJent, you 
have violated the comtitvtion. You rnustresign 
your office., and a Democrat muat be put in 
your place. I need not extend the illustra- 
tion If this log>c be correct, it would pro- 
tect every spy and traitcH" in the land —de- 
stroy every function of the commander in 
chief — and in the language of GeneralJack- 
son, the President would be as "powerless 
as he would be useless. ' I am ready to ad- 
mit that the view which I have taken of the 
executive power does not necessarily deter- 
mine his rights to suspend the privilege of 
the writ of Habeas Corpus. I only say that 
those who would arraign and impeach the 
President for exercising that power have 
failed to make a case. Theb- logic leads to 
absurdity; and their eonclusion is one giving 
aid and comfort to the rebellion. It is, after 
all, a- mere question of construction, and the 
President may be right. It is admitted that 
the power of suspension exists — that the 
occasion tor its exercise has arisen. 

Is it wise, therefore, or patriotic to stir up 
party strife — to divide the people, on the ab- 
s ract question, whether the power rightfully 
belongs to the President or Congress? If it 
belongs to Congress alone to authorize a sus- 
pension of the writ, the performance of that 
duty is clearly an executive function. If hy 
resolution, simply,' Congress had directed the 
President to do what he has done, the mouths 
of his accusers would be closed. Because 
Congress has failed in its duty, or because 
the President has believed that the discretion 
was vested in himself, and not in Congress, 
shall he be denounced for doing that which 
the direction of Congress would have made 



livering them, but not as yet have com- perfectly loyal and proper? In our haste to 
mitted the "overt act." This traitorous de- 1 make political capital over a supposed error 
sign might be discovered; immediate acti(m j or mistake of the Government shall we bring 
might be necessary; and the President orders j our country to ruin ? Isitnot thecmly hope of 
a troop of cavalry to seize these arms. It i the Confedei'ates that the people of the Unifn 
might happen that this seizure would save [shad be weakened by divisions, and that 
the Union army from certain defeat. But l through our discord their independence ma}' 
the owner of these arms brings his writ of . be accomplished ? Surely, at ihis time the Ex- 
replevin again jt the President, and the case ecutive need-, the support of every loyal and 
is set down to be tried before the nieirber i patriotic man. Because evil counsels have 
from Fairfield, whom we will suppose to be the j prevailed, shall we withhold from the Presi- 
justice of the peace for the neiiihborhood. 1 dent our earnest and hearty co-operation? 
Uf what avail before this great legal light are Because, in an unfortunate iiour the Aboli- 
all the arsiuments which the President might tionists appear to iiave gained swaj% shall we 
urge ? Oi what concern to him is it that this yield up tile Goveiumeut, and all that, as a 



nafion, we hold dear, to the dominion of; 
'^ t/iiitors V With the cry of "lil)erty" and "the 
Constitution," there are those that would i 
surrender on dishonorable terms. Let us [ 
remember that, of old, with the name of I 
"master" on his lips, the greatest of traitors j 
perpetrated his crime. There are those, also, I 
who are ready to divide the Country, and ! 
who would prefer to rule in a petty State | 
rather than serve in a great nation. The' 
Presidett of tlie United Slate belongs to nei- 1 
ther faction. His sole aim is to restore and j 
preserve the Union. The path of duty, as it ' 



seems "to me, is straij^ht and narrow. ^ 
would bury party strife ; and, in every man- 
ner, and by every possible means, would give 
to the President a heartj-- and cordial sup- 
port. I would give no countenance to sub- 
missionists on the one hand, or to fanatical 
abolitioni-ts (ui the other ; but, to whatever 
party or faction that may seek to divide or 
disgrace the Country, I would say, " Oh, my 
soul! come not thou into their secret: unto 
their assembh', mine honor, be not thou uni- 
ted." 



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